Overview

The Amendment Statement of Principles concerning Osteoarthritis (Balance of Probabilities) (No. 74 of 2019) was enacted to address the need for a more streamlined and scientifically sound approach to the assessment of osteoarthritis claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Repatriation Medical Authority (the Authority) determined this amendment under subsections 196B(3) and (8) of the VEA. The primary objective of this legislative instrument is to facilitate easier claim submissions and assessments for claimants by modifying the definition of 'osteoarthritis' to eliminate the requirement for compulsory radiological, imaging or arthroscopic evidence before the disease can be accepted. This change is intended to promote a more balanced and evidence-based approach in the assessment of osteoarthritis claims, thus ensuring that the qualifying conditions for benefits are reasonable, proportionate and transparent. The instrument is deemed to be compatible with human rights, as it does not derogate from and indeed promotes several human rights, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. This legislative instrument was finalised after the Authority advertised its intention to investigate osteoarthritis in the Government Notices Gazette of 7 May 2019 and invited submissions from relevant parties. However, no submissions were received during the investigation process. The Authority ensures that this legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Authority is also committed to facilitating the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal.

Scope and Application

The Amendment Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 74 of 2019) amends the definition of 'osteoarthritis' in the Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 62 of 2017). This legislative instrument applies to veterans, current and former Defence Force members, and other persons such as their dependents who may be eligible for benefits or compensation under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The amendment facilitates claimants in making, and the Repatriation Commission in assessing, claims under the VEA and the MRCA by revising the definition of osteoarthritis to remove the requirement for compulsory radiological, other imaging, or arthroscopic evidence before acceptance of the disease. This change aims to ensure that the qualifying conditions for the benefit are reasonable, proportionate, and transparent. The Instrument is compatible with the Human Rights and Freedoms recognised or declared in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The amendment is a technical instrument that improves the medico-scientific quality of outcomes under the VEA and the MRCA.

Key Provisions

The Amendment Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 74 of 2019) primarily revises the definition of osteoarthritis in subsection 7(2) of the Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 62 of 2017). This change eliminates the requirement for compulsory radiological, other imaging, or arthroscopic evidence to accept the disease, thereby facilitating both claimants and the Repatriation Commission in making and assessing claims under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA) (subsection 196B(3)). The revised definition aims to streamline the process, making it easier for veterans and Defence Force members to seek and receive compensation and benefits for osteoarthritis-related claims. The Act imposes specific obligations on the Repatriation Medical Authority (the Authority) to determine instruments that outline the connection between certain injuries, diseases, or deaths and service, based on sound medical-scientific evidence (subsection 196B(3) of the VEA). In this case, the Authority must ensure that the revised definition of osteoarthritis is reflective of the best available medical-scientific evidence. Additionally, the Authority must facilitate the process for claimants and the Repatriation Commission by removing unnecessary evidentiary requirements, thereby promoting a more efficient and equitable claims process. The Legislative Instrument does not create any specific offences or penalties for its breach. However, the underlying Acts, the VEA and the MRCA, include provisions for various civil and criminal penalties for fraudulent claims or misrepresentations. For instance, under section 126 of the VEA, making a false statement to obtain a benefit carries a maximum penalty of two years imprisonment, while section 127 of the VEA imposes a maximum penalty of five years imprisonment for obtaining a benefit by fraud. Similarly, section 145 of the MRCA prescribes a maximum penalty of two years imprisonment for making a false statement in the course of making a claim. Human rights compatibility is also addressed in the Explanatory Statement, which asserts that the Legislative Instrument does not derogate from any human rights and, in fact, promotes several human rights. These include the right to social security, the right to an adequate standard of living, the right to the highest attainable standard of physical and mental health, and the rights of persons with disabilities. The compatibility statement underscores that the Legislative Instrument ensures these rights are exercised without discrimination, aligning with international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD).